Alternative Courts? Litigation-Induced Claims Resolution Facilities (The Civil Trial: Adaptation and Alternatives‪)‬

The contemporary fixation on tort lawsuits in the public policy arena and in the popular media obscures an important development in litigation: with the decline of trial rates and the rise of alternative dispute resolution (ADR), the bulk of civil litigation is vanishing from public view. One place disputes are going is into "claims resolution facilities," privately designed, financed, and administered organizations for giving away money, established as a result of the settlement of mass litigation in trial or bankruptcy courts. The substantive and procedural rules applied by these facilities for resolving claims are usually known only to the small number of lawyers who participated in negotiating the agreements that established the facilities, the administrators of the facilities, and the facilities' overseers, and they have so far largely escaped the scrutiny of legal scholars. The increasing resort to private claims resolution facilities to determine the eligibility for and amount of compensation for civil plaintiffs raises efficiency, equity, and due process questions that deserve broad public policy attention. But the necessary data to support reasoned public policy debate about the proper uses of such facilities are generally unavailable and likely to remain so for the foreseeable future. It is a truism that civil disputes have long been resolved in myriad ways. Notwithstanding legal scholars' focus on trial courts, disputes both large and small are resolved in diverse settings, including legislatively authorized administrative tribunals and specialized courts as well as informal dispute resolution programs. (1) Numerous state and federal agencies dispense social welfare benefits and compensation to special categories of claimants, some broad and some narrow. (2) Claims resolution facilities, as defined here, are distinguished from such administrative tribunals and social welfare and other public compensation programs by the fact that they are private entities; their rules are not subject to broad public debate, and their outcomes are often protected from public scrutiny. (3)